Hegeman v. Johnson

By the Court, Emott, J. I am inclined to think that a judicial sale by a referee or sheriff, or other officer of the court, is not within the provisions of the statute of frauds. [204] (See 1 Vesey, 221; 12 id. 472.) If it be, however, the written report or certificate of the referee, or the note or memorandum made by the auctioneer employed by him as in the present case, would satisfy the provisions of the statute, and remove the objection on that ground to the validity of the contract to purchase, made by Mr. Horatio G. Onderdonk in the name, and professedly as the agent, of his daughter. In the National Fire Ins. Co. v. Loomis, (11 Paige, 431,) Chancellor Walworth expressed such an opinion, in a case very similar in that respect, although the point was not decided. We are therefore to treat this contract as not open to any such legal exception as that suggested from the statute of frauds. But we must also consider the purchase as made by Mr. Onderdonk as the agent of Sarah Onderdonk and in her name, without authority from her, and as not binding upon her. The question now is whether this individual is personally liable upon the contract, or can be compelled to perform it himself. I have come to the conclusion that he cannot, with some regret I confess, under all the circumstances of this case. The principle is stated in the books, and sometimes without qualification, that where a person undertakes to' do an act for another, if he does not possess any authority, or if he exceeds his authority, he will be personally responsible to the person with whom he deals. (See Story on Agency, § 264, and cases cited in note.) But the farther question arises in such cases, what is the character and extent of this liability, and what remedy is to be sought against the delinquent. In the English courts the rule in such cases is settled to be, generally, that the person is not to be made liable on the agreement or contract itself, but in a special action for the damage sustained by his representing himself as agent untruly and without authority. (Polhill v. Walter, 3 B. & Ad. 114. Jenkins v. Hutchinson, 13 Jur. 763. 1 Pars. on Contr. 57, 58, and note.) There is however a class of cases in-the courts of this state, in which it has been held that un [205] der certain circumstances a person assuming to act as agent, and making a contract as agent for another, without authority, may he held upon the contract itself, and compelled personally to answer or perform it, as if it were his own. This rule has been felt to he somewhat anomalous, and difficult to reconcile with the theory of contracts. It rests upon authority, however, and in cases which fall within the authorities, it is too well settled to he disturbed, at least by this court. (See Dusenbury v. Ellis, 3 John. Cas. 78 ; White v. Skinner, 13 John. 307; Meech v. Smith, 7 Wend. 315; Rossiter v. Rossiter, 8 id. 494, 499; Feeter v. Heath, 11 id. 477; Palmer v. Stephens, 1 Denio, 480.) It will he found upon examination that all these cases in our courts, except those of Meech v. Smith, (7 Wend. 315,) and Feeter v. Heath, (11 id. 477,) are cases of written contracts. Meech v. Smith was the case of an agreement not in writing, for the transportation of a quantity of flour at a certain price, and to he paid in a special manner, in part by the settlement of an old debt. The agent had authority to contract for the transportation company for the carriage of the flour, but not as he did for the application of the price towards a former debt of some of the partners in the carrying business to the owner of the flour. The flour was transported, and the price for the carriage earned, and thus the case presents two features; first, that there was an excess and not a total want of authority; and second, that the contract was executed. Feeter v. Heath contains the same distinctive features. The question there, as to the liability of the agent, arose upon a verbal contract made by him for the purchase of stone. He was directed by his principals to procure stone for a certain purpose, but he exceeded his authority in quantity and price. The chancellor, in giving the opinion in the court of errors, cites Pothier upon this point, and says, if I authorize another to buy a horse for me for $100, and he buys one for $110, he is liable to the vendor for the price, hut he may insist upon my taking the horse [206] and paying him the $100. This supposed case, as well as the case then before the court, was also, as will be seen, a case of an excess, and not a total want of authority. What is more material, they are cases of executed agreements— sales completed by delivery. The other cases in the courts of this state, as I have said, were cases of written contracts; and without recapitulating them, it will be found that this class of cases, in which a person contracting as agent has been held personally upon a written contract as if it were his own, are cases where he subscribed his own name, as well as that of his alleged principal. For instance, in the early case of Dusenbury v. Ellis, (3 John. Cas. 70,) the contract was signed “For Peter Sharpe, Gabriel Dusenhury, attorney.” Judge Selden says, in Walker v. Bank of the State of New York, (5 Seld. 582, 585,) that the rule or practice of holding the agent bound by the contract, in the same manner as though it were made in his own behalf, was limited to written contracts. With deference to so high an authority, however, the cases which have just been alluded to would seem to show that this remark was too broad. On the other hand, in the opinion delivered in the same case, of Walker v. Bank of the State of New York, in the supreme court, by Judge Hubbard, and in which, by the way, Judge Selden concurred, (see 12 Barb. 636, 639,) the remark occurs that the rule is limited to contracts not in writing. This also needs qualification, and the case itself supplies it. The theory upon which the rule is based is, that the agreement supposed or proved, is such that all which relates to the agency may be stricken out and a complete contract left. In unwritten contracts, the rule is limited to such as are executed, and no case can be found where an agent who assumed without authority to make a verbal executory agreement in the name of and expressly for another, was called to perform, or made liable, directly, upon that contract personally, while [207] it remained executory. What liability he may incur, or what form of remedy he may be liable to, is another question. [Orange General Term, September 9, 1861. In respect to written contracts, the rule is limited with equal distinctness to cases where the agent signs his own name, although he describes himself as an agent. This description being surplusage, may be stricken out, and a personal obligation will remain. But no such process, and no rational method of construction or interpretation will change a written agreement made by one person into the contract of another not named or described in.it, nor signing his name to it at all. And therefore a contract in writing, to which a person has without authority affixed the name of another, he himself not being mentioned, cannot be made or treated as his agreement, or as binding as a contract upon any one. The agreement in the present case, whether it be regarded as verbal, and still valid as an exception to the statute of frauds, or as made in writing by the auctioneer’s note or the referee’s report, falls without these rules. In the former case it is wholly executory, and in the latter it is not signed by Mr. Onderdonk as agent for his daughter, but is made in her name exclusively. I am compelled to the conclusion that Mr. Onderdonk could not be sued directly upon such a contract as if it were his own, and therefore he cannot be compelled by the exercise of our equitable jurisdiction to perform it as his own. Whether any other remedy can be made available, is a question upon which we are not called upon to give an opinion. This order should be reversed, without costs. Judges Brown and Scrugham concurred in this opinion. Emott, Brown and Sorugham, Justices.]